European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Thursday 7th September 2017 Commons Chamber

[Mr Davis]

I will make some progress now, and I will give way a little later. I am conscious of the point made by the Father of the House that time will be tight at least on this day. I will give way as much as is reasonable, but I do not want to dilate too long.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Will my right hon. Friend give way?

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[Mr Davis]

I will make some progress now.

Overall, then, the Bill provides for very significant continuity in the law, but there are some elements that simply—

[Mr Grieve]

Will my right hon. Friend give way on that point?

[Mr Davis]

In a moment.

There are some elements that simply will not make sense if they remain on the UK statute book once we have left the EU and in the years and decades to come. It would not make sense, for example, for the Bill to preserve the supremacy of EU law or to make the preserved EU law supreme over future legislation passed by this Parliament. Laws passed in these two Houses after exit day will take precedence over retained EU law.

We also do not believe that it would make sense to retain the charter of fundamental rights. The charter applies only to member states when acting within the scope of EU law. We will not be a member state, nor will we be acting within the scope of EU law, once we leave the European Union. As I said to the House when I published the White Paper on the Bill, the charter catalogues the rights found under EU law that will be brought into UK law by the Bill. It is not, and never was, the source of those rights. Those rights have their origins elsewhere in domestic law or relate to international treaties or obligations that the UK remains party to—for example, the European convention on human rights.

[Mr Grieve]

Will my right hon. Friend give way?

[Mr Davis]

Let me be clear: the absence of the charter will not affect the substantive rights available in the UK. As I have said before at the Dispatch Box, if an Opposition Member or anyone in the House—I am thinking of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve); I will come to him in a minute—finds a substantive right that is not carried forward into UK law, they should say so and we will deal with it.

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[Mr Davis]

I will come to the details in a moment, but there are a number of limitations, one of which is that we cannot impinge on the Human Rights Act 1998. That goes straight to the point that the right hon. Lady raises.

[Mr Grieve]

I understand my right hon. Friend’s point about the charter, because I agree with him that general principles and the charter should be identical—although that does raise the question of why, in those circumstances, the charter should go—but schedule 1 says quite clearly that after we have done this:

“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law.”

He must agree that that means that the right of the individual to challenge on the basis of the principle of EU law—the law that will be imported into our law by the Bill—will no longer be possible. That is in our own courts—forget about the European Court of Justice. That seems to me a marked diminution in the rights of the individual and of corporate entities.

[Mr Davis]

I am afraid that my old and dear right hon. and learned Friend and I are going to have a difference of opinion. We will put in the Library a letter on this specific issue, as we have already said. [Hon. Members: “When?”] Today. But the simple truth is that these rights, as he should know as well as anybody, have a whole series of origins. Some are from British common law, some are from EU law that we will bring in ourselves, and some are from the European convention on human rights—which, he will note, we are continuing with. All these things will provide those undertakings. Why on earth we need an extra layer of declaratory law I do not know. It was brought in under the Blair Government—perhaps that explains it.

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[Keir Starmer]

I am grateful for that intervention and agree with it.

May I move on to other rights, because they are dealt with more severely? Clause 5(4) singles out the charter of fundamental rights for extinction. There are thousands of provisions that are being converted into our law and will have to be modified in some cases to arrive in our law, but only one provision in the thousands and thousands has been singled out for extinction—the charter of fundamental rights. As the right hon. and learned Member for Beaconsfield (Mr Grieve) argued in an article published yesterday, the principles of the charter provide

“essential safeguards for individuals and businesses”.

That has been particularly important in the fields of LGBT rights, children’s rights and the rights of the elderly.

The Secretary of State asks why this matters. I have here the High Court judgment in the case of David Davis MP, Tom Watson MP and others v. the Secretary of State for the Home Department. This was in 2015, when the present Prime Minister was Home Secretary. David Davis the Back Bencher was bringing to court the now Prime Minister. He will recall that he was challenging the provisions of the Data Retention and Investigatory Powers Act 2014. He was concerned that they would impinge on the ability of MPs to have confidential communications from their constituents. He continued to make that point in debates that we were having a year or two ago. In his argument, he cited the charter. His lawyers made the argument that the charter was important because it went further than the European convention on human rights and therefore provided added protection.

I will not read out paragraph 80 of the judgment, although I am sure that the Secretary of State is familiar with it. As he knows, the Court found in his favour—he was right: the charter did enhance his rights—and rejected the arguments of Mr Eadie, the distinguished QC representing the then Home Secretary, now the Prime Minister. So when the Secretary of State asks whether this move will make any difference, the answer is yes. We can see that from his case. I suspect that if he were still on the Back Benches, he would now be talking to me and others over a cup of coffee about how we should fiercely oppose clause 5(4) and ensure that it came out of the Bill.

[Mr Grieve]

The right hon. and learned Gentleman makes an important point. Reading the mind of my right hon. Friend the Secretary of State, I think he asked why this mattered because he would insist that the general principles of EU law being preserved would replace the charter. However, if they are not justiciable because we do not found a cause of action in our courts, the ability to assert those rights would evaporate.

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[Mr Duncan Smith]

I am grateful for that intervention by my hon. Friend. I know he will be able to make a powerful case in support of the Bill, and he is right, but I will come back to that point.

The basis on which people are arguing—that there has never been a great sweep of powers coming through Henry VIII procedures—is completely and utterly wrong. The reason why I became so concerned about what was happening under the European Union treaties is that section 2 of the European Communities Act 1972 clearly states that all the rules and regulations coming through treaties

“are without further enactment to be given”

immediate legal effect and

“shall be recognised and available in law”.

It goes on to say that

“Her Majesty may by Order in Council”—

Order in Council, which is not the procedure in this Bill—

“and any designated Minister or department may by order, rules, regulations or scheme, make provision”.

We have sat with that for 40 years, and we have been content to let rules and regulations be made in that way.

To those who talk about rule-takers and rule-makers, such as my right hon. Friend the Member for Loughborough (Nicky Morgan), I say yes, that was the case up until the Maastricht treaty, when qualified majority voting came in. We became rule-takers under that provision, and there has never been a more powerful one in British legislative history. I just sound a cautionary note to some of my colleagues on either side of the House who go on about this being the first time; it is not so.

[Mr Grieve]

I have great sympathy with my right hon. Friend’s critique of European Union law. It is one of the reasons why the Brexit referendum ended up in the way it did, but that cannot be a justification for two wrongs making a right. The fact is that we do not need to legislate in this fashion in order to carry out the technical task of leaving the EU, and I remain utterly bemused as to why the legislation has been drafted in this form.

[Mr Duncan Smith]

I am not asking for two wrongs to make a right; I support the principle of the Bill and the need for it, but I recognise that in Committee there will be need to review how some of those checks and balances are introduced, and I hope that is done properly and powerfully. What my right hon. Friend the Member for Haltemprice and Howden said at the Dispatch Box gave indication to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that there is scope to look at that. So the argument is not about the powers in the Bill; the debate is about how we reassure ourselves as a parliamentary democracy that the checks and balances exist such that, given the very profound nature of what is happening, we can achieve a balance and not delay the necessary changes.

The Opposition are in a peculiar position, but the Scottish nationalists are in a ridiculous position. For years and years they have sat by, content to see all the powers exercised in Brussels exercised there without their having any say. The moment we talk about leaving the European Union and bringing those powers back to the UK, they are up in arms because they feel betrayed that they do not exercise those powers. Where were they over the last 40 years when those powers were given away?

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[Mr Grieve]

It is by no means the only ambiguity in this Bill, but I agree entirely that to ask the judiciary to carry out an interpretation of something that is so oddly and, I have to say, vaguely worded is a recipe for disaster and is something this House should avoid doing.

[Sir Oliver Letwin]

I agree with my right hon. and learned Friend about that and hope that in Committee we will be able to address that head on. My personal belief is that we should address it in the form of changing clause 6(3), to ensure that it is open to—indeed, that we give an inducement to—our courts to move back to the plain words of the texts of the treaties and directives, so far as they judge that can be done without injustice to individuals. That is the principle that most people who voted for leave, and indeed many of us who voted on balance to remain but have been extremely sceptical about the activities of the ECJ and the Court of Justice of the European Union for many years, would wish to see enshrined in this legislation. I suspect that I might even carry my right hon. and learned Friend the Member for Rushcliffe on that point, because he was, somewhat surprisingly, very sceptical about the ECJ on many occasions—I say surprisingly, because, despite his enthusiasm for the EU, which I never quite managed to share, actually he is a very good parliamentarian and a very good lawyer and recognises that we do not want a court that makes its own law. So I think we have a way forward that we can seek to follow in Committee.

None of that should obscure the fact that this is a good and necessary Bill. Nothing that the Opposition have said has suggested that there is any structural deficiency. Therefore, I will vote for it, and I hope all my friends and colleagues on the Conservative Benches and, indeed, many on the Opposition Benches will do the same.

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[Mr Dominic Grieve (Beaconsfield) (Con)]

First, I congratulate the hon. Member for Canterbury (Rosie Duffield) on her maiden speech, which I greatly enjoyed. Canterbury is a city I know well: it is where I spent many of my early years at the Bar, cutting my teeth as an advocate. I hope I can remind myself of some of the lessons I learned there in contributing briefly to this debate.

I shall support the Government in the vote on Second Reading. The Bill is vital: we cannot leave the European Union sensibly without such a Bill on the statute book. The Government need support, and they will have it from me. Nevertheless, I regret to have to say to my right hon. and hon. Friends that unless the Bill is substantially improved in Committee, I will be in no position to support it in its current form on Third Reading.

In many respects, it is an astonishing monstrosity of a Bill. Its first failing is its entreatment of EU law itself. I do not much care for EU law—I did not much enjoy practising it, although I had outings to the European Court of Justice when I was Attorney General—but it is a different form of law from our own, which we imported, and which, in many ways, has filled vast areas that otherwise we would have developed in our own domestic law. So we need to nurture it, because we cannot get rid of it overnight without leaving enormous gaps. In addition, there are safeguards within EU law that do not exist within our law and need to be retained, because otherwise EU law will act unfairly. Again, they are different from our own.

I have a number of areas of concern. The Bill does not deliver clarity. Its importation of EU law is hedged around with ambiguities that undermine one of the key pillars of the rule of law, which is certainty about what the law is. One example is given by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but there are numerous others. For example, Clause 2(1) is so widely drawn that retained EU law will include domestic law that was implemented entirely domestically but has a link to the EU. That would then make something like the Equality Act 2010 susceptible to change by statutory instrument in clause 7—something which I suspect everybody in this House would regard as completely unacceptable.

[Sir Oliver Letwin]

Does my right hon. and learned Friend agree that we could address that in Committee not through a change to clause 2, which is pretty fundamental, but through changes in clauses 7, 8 and 9, with which we are already concerned?

[Mr Grieve]

Absolutely. I entirely agree with my right hon. Friend. These are all curable, and readily curable, with just a little bit of will.

There is another example on which we have already touched. EU law never used to be divided between primary and secondary legislation. Interestingly, it is all being treated as primary, which has the nice merit—I am sure that someone in Whitehall dreamed this up—that none of it would be susceptible to be quashed by a challenge under the Human Rights Act. That may not matter, but it is capable of causing unfairness when it is linked to the fact that the other area of challenge that would normally be available, which is a challenge because something is in breach of the general principles of EU law, has been delicately removed along with the charter of fundamental rights.

I hope that I may be forgiven for saying this about my right hon. Friend the Secretary of State. I have had some wonderful times with him—journalists once said of him that he used to stand up and club Labour Home Secretaries over the head and then I would come along and dissect them in public with a legal scalpel—but I just slightly detect that he was looking a bit like a fugitive as the legal scalpel started to move in on him. I do not know where that idea came from, but somebody will have to sort it out. We will have to do it at the Committee stage of the Bill. There are other examples that I could give, but I do not have the time to do so right now, so I shall leave them for the Committee stage in which I intend to participate actively.

Let me move to the Henry VIII clauses. The current situation is ridiculous. I recognise that there will have to be Henry VIII clauses. Of course we cannot carry out this massive revolutionary transformation by primary legislation alone, but we can ensure that we have the necessary safeguards in place. The most obvious one is to have an established parliamentary system of scrutiny to ensure that the different types of statutory instruments that will be needed are correctly farmed out. I have no doubt that my right hon. Friend is right that the vast majority of them will be technical and of very little account, but some will be extremely important and will need to be taken on the Floor of the House. We need to have a system in place to do that.

[Stephen Lloyd (Eastbourne) (LD)]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

No, I must make progress. There is another issue with Henry VIII clauses. We need to look at the ones we have, as some are much too widely drawn. For example, clause 7 talks about “any deficiency” in an EU measure. It is one thing to say that it is inoperable, but quite another to say that it is deficient. Frankly, I could find arguments to suggest that every single law in this country is deficient. I am afraid that these will have to be changed.

Finally, let me turn to the question of the programme motion. I have no objection to programme motions; they are very important and, in my view, a properly structured programme motion can work well. I am prepared to support the Government on such a motion as long as I have an assurance that, so long as it is not because of filibustering, if we run out of time we will get more. That is vital. With that, I wish the Bill well. I hope that I might be able to improve it and I look forward to being able to support the Government on Third Reading and bring this important constitutional measure to completion.

European Union (Notification of Withdrawal) Bill

Dominic Grieve Excerpts

Ping Pong: House of Commons
Monday 13th March 2017 Commons Chamber

[Mr Davis]

I said before, and I will say it again: I take statements at this Dispatch Box as binding.

The important point here is that the idea that Parliament could force the Government to accept a bad deal will only incentivise those on the other side of the negotiating table to deliver just such a deal. As the Lords European Union Select Committee—hardly a Tory front organisation —said:

“The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome.”

[Mr Dominic Grieve (Beaconsfield) (Con)]

No one in this House, as far as I am aware, wishes to fetter the Government’s hands in negotiations, or indeed the Government’s right to walk away from the negotiations; the issue in subsection (4) is whether the Government come back to this House to explain their plan and policy in the event of that happening. I would expect that to be inevitable, and yet, curiously, when we have sought an assurance from the Government—no more than that; not this amendment—that they would do that, which seems to me to be blindingly obvious, we keep being told that they will not give that assurance. I do find that, I have to say to my right hon. Friend, a bit odd, and I wonder whether he could clarify that.

[Mr Davis]

My right hon. and learned—and old—Friend makes a good point. The simple truth here, however, as I have said before, is that nothing can constrain this House’s right to debate and vote on anything it sees fit, and that meets this.

What I am dealing with here is subsection (4), and there are even bigger problems with it. During the debate on this issue in the other House, the author of the amendment, Lord Pannick, himself admitted he did not know what would happen if Parliament voted against leaving the EU without a deal. This uncertainty is itself a strong argument against putting this amendment into statute.

However, a significant number of Lords supported this amendment—that may not be true in this House—such as Lord Wigley and Baroness Kennedy, and they made their intentions clear: if Parliament were to vote against leaving without a deal, the UK should seek to remain in the EU and reverse the result of the referendum. I should say to my hon. and right hon. Friends that the European Union member states and the European Union institutions read the proceedings of this House very closely; they will have read that, and it will have raised their interest, because that is precisely what they would like to happen. So while this has been badged as a meaningful vote, the reality is that there are some who would seek to use it to overturn the result of the referendum. [Interruption.] “Good idea” comes from across the Floor. That is exactly, I am afraid, what concerns us.

The Government and the Prime Minister have been crystal clear. The people of the United Kingdom have decided to leave the European Union. The Government will seek to implement this decision in the way that is most beneficial to both the United Kingdom and the European Union. What we will not do, however, is accept anything that will put the intention to leave the European Union in doubt.

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[Mr Speaker]

Order. A three-minute limit on each Back-Bench speech will now apply.

[Mr Grieve]

I want to support the Government in carrying out an efficient and effective Brexit but, after listening to some of the contributions this afternoon, I think I am living in wonderland.

I will focus solely on Lords amendment 2, particularly subsection (4). The first thing to understand is that, as matters stand, there will be a need not for resolutions of this House, but for primary legislation to complete the process. In fact, there will be a need for primary legislation even if we have no deal at all. I do not know when the Government want to deal with that. They could conceivably try to do it during the course of the great repeal Bill, but they have not suggested that that is what the great repeal Bill—which is, in fact, an entrenchment Bill—is all about. So it seems that if there is no deal at the end of the process, there will have to be primary legislation passed by this House, if that has not already been done.

Interestingly, far from the Lords trying to lead to great litigation, their view—if the Government bother to read Lord Hope’s speech—was that litigation could be avoided by tabling the amendment and providing for a resolution mechanism at the end. I can promise my hon. and right hon. Friends who think that there is some whizzo way of getting around the litigation that, if they do not follow proper constitutional process, there will be litigation, and that litigation will hold matters up.

Now, I am not so concerned about amendment 2. I am concerned about getting an assurance from my right hon. Friend the Secretary of State for Exiting the European Union that, if there is no deal at the end of the process, which will be a very significant moment in this country’s history, Parliament has an opportunity to debate and vote on that. Far from that being an obstruction of the process, I would expect it to be part of the normal constitutional process and the Government to seek the endorsement of the House for that very significant act. I worry that my right hon. Friend—who, I think, personally may well agree with me—has been prevented from saying that at the Dispatch Box. I am afraid that I am not prepared to follow processes that appear to be, frankly, deranged.

There is a clear way of doing things. If we follow them, we will come up with the right decisions at each point; if we do not, we will mire ourselves in chaos. I want to support the Government, but I have to say, most reluctantly, that if we persist with this, I cannot support the Government this evening when it comes to amendment 2. I am very sorry about that. I would like to be able to support the Government because the critique of the Lords amendment has some force, but someone has to put down a marker that we have to follow a proper process in the way in which we carry out Brexit.

[Chris Leslie (Nottingham East) (Lab/Co-op)]

I commend the right hon. and learned Member for Beaconsfield (Mr Grieve) for his speech. Notwithstanding my obvious support for the Lords amendment on EU nationals, I urge Government Members to think carefully about what they are being asked to do by Ministers today. The Lords have already inserted into the Bill the amendment to give Parliament a meaningful vote, and Ministers are asking hon. Members tonight to wrench that out of the Bill and delete it. As the Bill stands, it provides that parliamentary scrutiny and authority. Government Members should ask themselves whether they really want actively to go through the Lobby and delete that from the text of the Bill.

Ministers have asked hon. Members to do a number of things. They say, “Don’t tie the hands of the Prime Minister. Whatever you do, give her unfettered power to negotiate in whatever way she likes.” I say to those Ministers and to hon. Members that we should not be putting power entirely in the hands of one person—the Prime Minister—without any insurance policy whatever. With the greatest respect to Ministers, the Prime Minister decides who is on her Front Bench, and parliamentary democracy is the insurance policy that we need throughout the process. We should not be frightened or shy of that. We should welcome it because it is a strength and it is a part of the process.

The Government say, “Take back control.” Yet at the same time they are asking us to muzzle Parliament for the next two-year period by saying, “Well, whatever happens, Parliament may not have a say on that.” We could find ourselves in circumstances where the European Union offers a really good deal but the Prime Minister, singularly, on her own—or his own, of course, because it depends on who the Prime Minister is in two years’ time—could say, “Absolutely no deal.” This Parliament would have no choice but to accept that. We would have no say on the matter.

Ministers ask us to accept their verbal assurances. Well, Ministers are here today, but could be gone tomorrow. May I speculate that we could have a different Prime Minister by the time we get to spring 2019? Who knows? It is possible that the right hon. Member for Uxbridge and South Ruislip (Boris Johnson)—the Foreign Secretary, no less—could be Prime Minister one day. He said at the weekend that it would be

“perfectly okay if we weren’t able to get an agreement.”

He could be Prime Minister—Government Members do not know—and that would be the situation we would have to face, with no votes and no rights for Parliament. Verbal assurances are not sufficient.

[Helen Goodman]

I wish to speak particularly to amendment 2, which is very similar to new clauses 99 and 110, which we debated about a month ago.

Conservative Members have complained about Lord Pannick’s drafting. When Ministers make that complaint, I feel it is slightly disingenuous, because they had the opportunity to amend the amendment. If they really felt the other place should not be involved, they could have changed the drafting to say not “both Houses of Parliament” but only “the House of Commons”, or they could have taken out subsection (4), which provides for what we do if there is no agreement with the EU. They have not done that, so they are making the bar higher for their colleagues behind them. In any case, either it is a problem that the House of Lords has a veto, because it is an unelected Chamber, or it is not a problem. It seems the Prime Minister made a promise that the vote would come to both Houses, so she does not seem to think it is a problem, and I do not know why it is being put up as a problem now.

The right hon. Member for West Dorset (Sir Oliver Letwin) took us on a long perambulation about what might or might not happen. That was completely unnecessary: if we had the amendment on the face of the Bill, we would, in effect, make it part of the constitutional arrangement, which, under article 50, has to be respected by the EU counter-parties in the negotiation.

[Mr Grieve]

The hon. Lady makes a very good point, because in the last debate we had, we discussed the possibility of being up against the wire. However, it seems to me on reflection that, in actual fact, if our own constitutional processes are not finished, we could not simply fall off the edge of the cliff until we had finished them, and I believe that to be the view of the lawyers in the European Commission as well.

European Union (Notification of Withdrawal) Bill

Dominic Grieve Excerpts

Committee: 2nd sitting: House of Commons
Tuesday 7th February 2017 Commons Chamber

[Mr Jones]

We are debating the issue at considerable length now. I have, on behalf of the Government, made what I believe is a serious commitment and it should be accepted as such. Frankly, in those circumstances, I see no need for a further amendment.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Is not the problem that the Government and the House have the fact that we do not know at what stage the negotiations will be concluded? They could be concluded, with months to go, within the two-year timeframe. In those circumstances, I would expect the House to be able to consider the agreement—even, perhaps, before it was provisionally agreed with the Commission, because there would be no time pressure.

Equally, however, we could end up in a situation where the agreement is made at one minute to midnight at the end of the two-year period. If the Government do not then conclude an agreement to bring it to the House after that, but before it goes to the European Parliament, we could end up with no deal at all. The Minister may agree that the Government have a real dilemma. It is important that the House should understand those limitations, because they go fundamentally to the question of whether an amendment can be reasonably crafted to meet that situation.

[Mr Jones]

My right hon. and learned Friend makes a very fair point. As we proceed, we have to keep reminding ourselves that we are where we are because the United Kingdom has voted to leave the European Union. What we are seeking to achieve is a departure from the European Union on the best possible terms. I strongly believe that what the Government are proposing is as much as possible in terms of a meaningful vote at the end of the process.

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[John Redwood]

I am very grateful. Perhaps I can clarify the matter by saying that the Attorney General was very clear in his submission to the Supreme Court, as was the lawyer on the other side of the case, that article 50 is irrevocable, and the judgment was based on that proposition. Does the right hon. Gentleman therefore agree that it is irrevocable?

[Mr Grieve]

rose—

[Alex Salmond]

I give way to the former Attorney General.

[Mr Grieve]

The concession of the Government in the Supreme Court was merely for the purpose of those proceedings. I say to my right hon. Friend the Member for Wokingham (John Redwood) that we can derive nothing from that as to whether article 50 is revocable or not. Indeed, there is powerful legal argument that it is capable of being revoked.

[Alex Salmond]

The two Members should talk among themselves before they come to the House with an agreed position. However, both those amazingly talented people are on the Back Benches, so it does not really matter if they have an informed and learned debate after proceeding to agreement. What matters is the confusion on the Front Bench. Whatever they think, the Brexit Secretary did not know whether it was revocable or not.

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[Chris Leslie]

I would like to move on because other hon. Members want to get into this discussion.

The wording of new clause 110 is very deliberate in talking about the new relationship as well as a new treaty. It is important that we take the opportunity that the Supreme Court has given us. Not only that, but we should listen to the entreaties of the Prime Minister herself in her own White Paper, where the 12th of her 12 points said that we would not aspire to a cliff edge—that we would try to get a deal. This new clause simply seeks to facilitate, in many ways, the role that Parliament could have in achieving the very thing that the Prime Minister has said that she wants.

I am afraid to say to the Minister that Hobson’s choice, take-it-or-leave-it style votes are not acceptable and not good enough for Parliament. We must have a continued say in this. I urge members of the Committee, across the parties, to consider the role that new clause 110 could play in making the vote meaningful.

[Mr Grieve]

It is a pleasure to participate in the debate. I agree with one comment that the hon. Member for Nottingham East (Chris Leslie) made when he spoke to new clause 110: the problem that bedevils this debate is that we are in a grey and murky environment when it comes to ascertaining how the process will or should unfold. As somebody who campaigned to remain, that was one of the things that worried me at the time, but I have to accept that the electorate have spoken. For me, the key issue is how I can help the Government to navigate some of the reefs that seem to be present so that we can achieve a satisfactory outcome and try to give effect to the expressed will of the electorate.

Our problem is that we cannot predict what the situation will be in two years’ time. We have no idea what the political landscape will be in this country. We do not know what the economic conditions will be, and we do not know whether we will be doing very well in the run-up to Brexit or very badly. We cannot predict the political landscape on the European continent or the state of the European Union, and how that might affect the negotiations. Nor can we predict the wider security situation on our continent.

That is why the idea that the House in some way forgoes its responsibility to safeguard the electorate’s interests because a referendum has taken place is simply not a view to which I am prepared to subscribe. In such circumstances, we need to have regard to the situation and to the difficulties that the Government face because of its unpredictability, but we must rule nothing out.

To pick up a point that has been made—I repeat it, because it is my position and I shall hold to it until the end—public opinion on this matter may change radically, and the House would be entitled to take that into account. Equally, I accept that at the moment there is no such evidence, and it is our duty to get on with the business of trying to operate Brexit.

How do we introduce safeguards into the process? Of course there is an ultimate safeguard, as the House has the power to stop the Government in their tracks, but that tends to be a rather chaotic process that leads, usually, to Governments falling from office. It is an option that one can never entirely rule out in one’s career in politics, but it is not one that I particularly want to visit on my Front-Bench colleagues. However, this is an important matter, and one of the risks that they undoubtedly run in this process is that it could happen to them. We cannot exclude that possibility.

It is very much better that we should have some process by which Parliament can provide input and influence the matter in such a way as to facilitate debate and enable us collectively to reach outcomes that we can, at least, accept and that may be in the national interest.

[Alex Chalk]

On a point of clarification, will my right hon. and learned Friend indicate whether he perceives new clause 110 to be a potential vehicle for blocking Brexit and keeping us in the European Union? At the moment, that is not clear to me.

[Mr Grieve]

New clause 110 is certainly very well meaning, but I happen to think that there are some problems with it, and I will explain what they are in a moment.

One point that should be made is that it is usual for Government to bring important treaties to the House for approval before signing them. That is a common phenomenon; it is not unusual. There is a long history of doing that with important treaties, so we cannot simply say, “Normally, we ratify them after they are signed.” The obvious course of action, sequentially, is for the Government to publish the White Paper—I am delighted that we succeeded in securing one, because it sets out a plan—and then to get on with the treaty negotiations. In an ideal world, I would like the Government to come back before anything is concluded to ask the House for its approval and to indicate what they have succeeded in achieving. The House will have to make judgments at that time in relation to the overall situation.

[Mr McFadden]

I am grateful to the right hon. and learned Gentleman for giving way while he is taking us through this sequence. The Minister indicated at the beginning of the debate that the Government were bringing forward a concession that would make the process more meaningful. I do not expect him to comment, but it appears that No. 10 is now briefing that it is exactly the same as what the Prime Minister offered in her Lancaster House speech, meaning that nothing has changed.

[Mr Grieve]

I do not think I agree with that. I do not know what No. 10 may or may not be doing, but I had a role in trying to secure the concession read out by the Minister. It is by no means a perfect concession as far as I am concerned, and in a moment I shall come to some of the difficulties that I think the House has.

[Angela Smith]

The Daily Mirror is reporting that No. 10 has said that all the concession does is give clarity around the timing of the vote and nothing else.

[Mr Grieve]

It is absolutely right that the Government have indicated on a number of previous occasions that they would allow the House to have a say. Looking at the matter logically, I have to say that depriving us of a say would be a “light blue touchpaper and retire” moment, frankly. If a Government do not wish to bring themselves down, denying Parliament a say on a really important issue is just not feasible.

I had a role in trying to see how the Government could provide some assurance about the process. It is not perfect—the Minister has read out what he has—but I say to the hon. Member for Penistone and Stocksbridge (Angela Smith) that, as the shadow Secretary of State said, it is a very significant step forward from what had been said previously. To my mind, it has provided helpful clarification.

[Angela Smith]

The right hon. and learned Gentleman is being generous. No.10 is briefing that there is no real change and that the concession is not a concession. That is No.10 itself.

[Mr Grieve]

I can read what is on the paper. I take the view that this is a significant step forward, but I will say no more about it at this time.

[Alex Salmond]

The House will have its say; the question is about the circumstances in which it has that say and the default position if it does not agree. May we adjudicate between the Daily Mirror, No.10, the Minister and the interpretation of the right hon. and learned Gentleman by having something on paper in the Bill? In that way, all our interpretations can be crystallised around an essential truth.

[Mr Grieve]

With characteristic sagacity, the right hon. Gentleman goes to the heart and nub of the problem. Is it readily possible to put into the Bill the intention read out at the Dispatch Box by the Minister? In fairness to the Minister and the Government, there are, I am afraid, some really good reasons why that presents difficulties.

The most obvious difficulty is the finite nature of the negotiating period under article 50. One of the things I was interested in was whether we could secure from the Government an undertaking that we would have a vote at the end of the process—before, in fact, the signing of the deal with the Commission. Contrary to what is set out in new clause 110, the Council of Ministers and the Commission are not two separate processes. The Commission will sign the initial agreement when the Council of Ministers gives it the authority to do so, and it then goes to the European Parliament for ratification or approval—call it what you will. Those are not two separate things.

Our problem is that if the negotiation follows the pattern that we have often come across in the course of EU negotiations—running to the 11th hour, 59th minute and 59th second—and we are about to drop off the edge, I confess that I do not particularly wish to fetter the Government’s discretion by insisting that at that precise moment they have to say, “We’re terribly sorry, but we can’t give you a decision until 48 hours after we have dropped off because we have to go back and get approval from both Houses of Parliament.” That is a real problem inherent in what to my point of view is the ghastly labyrinth into which, I am afraid, we have been plunged. We have to try to work our way through it with common sense.

[Yvette Cooper]

Was it the right hon. and learned Gentleman’s understanding that the Minister said that the deal would be presented to Parliament after it had been agreed by the Commission and the Council, but before it had been agreed by the European Parliament? If so, that sounds like a really late stage in the process. Does he think it is a problem if the European Parliament can send the deal back for negotiation, but the UK Parliament cannot?

[Mr Grieve]

There are bound to be difficulties because the whole process of negotiations under article 50, as the right hon. Lady will be aware, is rather one-sided. That is an inherent difficulty. Let us suppose for a moment that the negotiations are concluded in 18 months. I would rather hope in those circumstances that the Minister would say, “Thank you very much, but we will not even make the first agreement. We want to go back to the both Houses of Parliament even before we agree with the Commission because we have time to do so.” However, if it is the 11th hour, 59th minute and 59th second, I accept that the Government have a problem that is not taken into account by new clause 110.

[Mr Kenneth Clarke]

My right hon. and learned Friend’s preference is obviously for Parliament to be asked its opinion before any agreement has been signed with the Commission, on the authority of the Council. Does he accept that the 11th hour problem can easily be got around? In the tortuous process of European negotiations, stopping the clock is hardly unknown. If all the member states agreed that the British Government had to be given time to get the approval of Parliament, they would allow two or three weeks to elapse.

Does my right hon. and learned Friend also agree that we need something on paper to clarify these highly important points? Does he join me in inviting the Minister to table an amendment in the House of Lords to give precise effect to whatever the concession is meant to mean? If we pass either new clause 99 or new clause 110, it could be replaced by that Government amendment, if Ministers were to come up with a better clarification. What we cannot do is leave the debate to continue for the next two years on what the Minister did or did not mean when he made his statement to the Committee today.

[The Temporary Chair (Mr George Howarth)]

I say for the benefit of other Members that the right hon. and learned Gentleman has had a very long career—so long, in fact, that he is capable of recognising the difference between an intervention and a speech.

[Mr Grieve]

I am delighted to hear from my right hon. and learned Friend. I do not think it would necessarily be unhelpful—in fact, it would be very helpful—if the Government were in a position to amplify the Minister’s brief statement. However, I acknowledge—I think my right hon. and learned Friend knows this—that doing that by means of an amendment would be rather difficult. I know that Government draftsmen have extreme ingenuity and, indeed, that this issue might be taken up in the other place, but there are difficulties because there is a whole series of conditionalities. I certainly do not wish to fetter the Government in their ability to carry out the negotiation. It has always seemed to me that it would be a great error to do that, because we might undermine the ultimate outcome, to our own detriment. That has worried me throughout the process.

I do not want to take up more of the Committee’s time. Although I have had great difficulty over this matter today and in the days leading up to this debate, my inclination, for the reasons I have given, is to accept the assurance given by my right hon. Friend the Minister, which seems to me to be a constructive step forward. However, he has to face up to the fact that this issue will not go away. Even when we have enacted this Bill and triggered article 50, this will be a recurrent theme throughout the negotiating process that will come back much, much harder as we get closer to the outcome and as it becomes clearer, from all the leaks that will come from Brussels, what sort of deal or non-deal we will have, so the Government had better have a strategy. If their strategy is to avoid this House, I have to say to the Minister that they will fail miserably. I do not want that to happen. I want to guide this process as best I can, as a former Law Officer, towards a satisfactory conclusion.

[Alistair Burt]

My right hon. and learned Friend has played a considerable part in this process. Does he agree that the remarks of the Minister put the onus on the Government to ensure that the reporting process for the negotiations is meaningful? We cannot have a vote at the end of the process after 18 months of radio silence. The reporting process must be sensible and relevant. It must give the House a feel of what will happen because, if that is not the case, the vote at the end will mean very little.

[Mr Grieve]

I agree entirely with my right hon. Friend. I hope that the Government will listen because, as I say, this issue will not go away. It will keep coming back to dominate our politics until we have resolved it satisfactorily. That said, I would be being curmudgeonly towards the Minister if I did not thank him for having listened on this issue, for which I am grateful.

[Sir Oliver Letwin]

My right hon. and learned Friend has thanked the Minister, but I think that the Committee ought to thank my right hon. and learned Friend. He has set out the responsible version, which we did not hear from Opposition Members, of how to deal with this issue.

[Mr Grieve]

I am grateful to my right hon. Friend. He made some of the points that I might have made in his speech. He and I approach the issue from a similar angle.

[Geraint Davies]

The right hon. and learned Gentleman’s whole speech seems to be predicated on the idea that the Government can go to and fro, and somehow finesse and negotiate something that Parliament might be happy with. Is it not the case, however, that it will be the EU27 that decide what we get? They will say, “You’ve triggered article 50, so here’s what you’re getting,” so is not this whole discussion cloud cuckoo land?

[Mr Grieve]

I have to say to the hon. Gentleman that I do not know. I actually think that none of us knows. We can make some broad assumptions that there appears to be some goodwill to try to reach a sensible agreement, and we can see how that could be easily derailed by political pressures and considerations within other EU states. We can also see that the United Kingdom is at a disadvantage in the negotiations for reasons that are plainly obvious. Having embarked on this course, however, we have to try collectively to apply common sense. I regret to say that I often do not hear common sense on this issue. Frequently, I do not hear it from some Conservative Members who seem fixated on ideological considerations that will reduce this country to beggary if we continue with them. We have to be rational in trying to respond to the clearly stated wishes of the electorate until such time as they show—they might, just as they showed between 1975 and last year—that they have changed their mind on the subject. Even then, the view might be of a completely different future and not a return to the past.

I will do my best to support the Government and I welcome the Minister’s comments. In the circumstances, having looked at the amendments, those comments are the best solution we have this evening. However, that does not mean that the Government will not have to continue thinking about how they involve the House. Otherwise, this House will simply involve itself.

[Owen Smith]

It is a genuine pleasure to follow the excellent and characteristically shrewd speech by the right hon. and learned Member for Beaconsfield (Mr Grieve). I agree wholeheartedly with one point he made towards the beginning of his speech: we cannot allow the fact that there has been a referendum to absolve this House of its duty to scrutinise the Government’s progress in the negotiations, and to act in the national interest. I wholeheartedly agree with him on that. That view is conditioning my entire approach to this debate.

I disagreed with the right hon. and learned Gentleman, however, on the substantive point he made in respect of the concession made by the Brexit Minister. I disagree that the Government have made a substantive concession today. I confess that I am far less sanguine than some of my right hon. and hon. Friends about that. It does not feel to me that we have moved much beyond where we were in the Lancaster House speech. What is being offered to the House is a debate right at the end of the process, at a point—we do not know when exactly—seemingly in the dog days of the process. A choice at that point will be between the deal on offer, which in my view is likely to be a bad deal—one predicated on our leaving the single market and the customs union; the rock hard Brexit we all feared—and no deal. If there is no deal, the Minister confirmed today that the country will face exiting the European Union on WTO terms. What does that mean for the country? According to the director general of the WTO, it would mean a reduction in trade of around £9 billion per annum to the UK. Before the referendum, the Treasury thought it would mean an annual reduction in receipts of £45 billion per year. That was the reduction in GDP it foresaw. It is an eye-watering sum, equivalent to putting 10p on the basic rate of income tax. That is why, above all else, we have to consider where we are going incredibly carefully. If we end up there, it will be a disaster for Britain.

I said earlier that I wanted to speak in favour of amendment 43, tabled in the name of the hon. Member for Westmorland and Lonsdale (Tim Farron), but I would have liked to speak to my new clause 52, or even new clause 131, tabled by the Liberal Democrats, which would both have gone further and insisted on there being a second referendum. Apparently we cannot consider those amendments, however, because they would require a money commitment that the Bill does not have. That is ironic, given that the potential cost of falling out of the EU is £45 billion. Spending £100 million to make sure we do not do that seems like a pretty good deal.

--- Later in debate ---

[Yvette Cooper]

I actually do agree with the right hon. Gentleman. We do want tariff-free trade, but he and I will probably differ on the customs union, for example. There would be huge advantages in staying in the customs union, but that does not affect the decisions that we might make on free movement or other aspects of the single market. I know that he would like us to be outside the customs union, but that may be a crunch question for the deal. The Executive might reject alternative options or better deals on matters such as the customs union on their own rather than give Parliament the opportunity to have its say.

Some of this comes down to timing. I accept that there is an article 50 timescale of two years and that it will be for the EU to decide what happens at the end if no deal is in place, but that also matters for the timing of the vote. At the moment, based on what the Minister said earlier, the vote will come at the very end of the process and could end up being at the end of the two years. The strength of new clause 110 is that it would require the vote to be held before the deal went to the European Commission, the European Council or the European Parliament. The advantage of that is that we would have a parliamentary debate and a vote earlier in the process, and that if there were no agreement, there would still be the opportunity for further negotiations and debates before we reached the article 50 cliff edge.

[Mr Grieve]

I hesitate to say this, but the House sometimes fails to realise its own powers. If it becomes clear during the course of the two years of negotiations that the Government are rejecting a negotiating opportunity that the House thinks is better than the one they are pursuing, there is nothing to prevent the House from asserting its authority in order to make the Government change direction; it is a question of whether we have the will to do it. The problem with the right hon. Lady’s point is that if we were right up against the wire, it could tip the Government into losing an agreement and there would be nothing to replace it.

[Yvette Cooper]

Were that the case, it would be Parliament’s responsibility to behave with the common sense that the right hon. and learned Gentleman advocated earlier. I would trust Parliament to have common sense and not push Britain towards an unnecessary cliff edge in those circumstances. That is not what Parliament wants to do. It has already shown that it wants to respect the decision that was made in the referendum, which is important, but it also wants to get the best deal for Britain and will be pragmatic about the options at that time.

The right hon. and learned Gentleman suggests that there might be an alternative way for Parliament to exercise its sovereignty, but what might that be in practice? We could have a Backbench Business Committee motion or an Opposition day motion that the Government could then ignore. We could have a no confidence motion, but that would not be the appropriate response when we should be considering the alternatives in order to get a better deal out of the negotiations.

If the right hon. and learned Gentleman were to come up with an alternative way for Parliament to exercise its sovereignty that I have not thought of, there might be an alternative to a vote today. If we want legislation that ensures that there is recourse to Parliament on these important issues, which will affect us for so many years to come, the right thing to do is to get something in the Bill.

--- Later in debate ---

[Mr McFadden]

There are two issues at the heart of today’s debate, which is about the role of Parliament in judging the final deal. The first issue is the timing of any such vote, and the second is how to make that vote meaningful. I want to speak to new clause 137, which is in my name and those of my hon. and right hon. Friends.

A significant part of the argument for leaving the European Union was about restoring parliamentary sovereignty so that this House could take decisions about the country’s future, yet attempts to assert that sovereignty have been constantly dismissed as undermining the Government, if not the country. The cry over and over again has been, “Blank cheque, blank cheque, blank cheque.” We should not give a blank cheque; there is a legitimate role for us.

The new clause seeks to do two things: first, to enshrine in the legislation the Prime Minister’s promise of a parliamentary vote on a final deal; and, secondly, to assert what can happen if Parliament declines to approve the final deal.

The Government have set out their aims in the White Paper and in other statements. The White Paper defines the Government’s aim as

“the freest possible trade in goods and services between the UK and the EU.”

The Secretary of State for Brexit said that this would be

“a comprehensive free trade agreement and a comprehensive customs agreement that will deliver the exact same benefits as we have”.—[Official Report, 24 January 2017; Vol. 620, c. 169.]

That is the test the Government have set themselves. I wish them well in ensuring that we do get the exact same benefits as we have.

This new clause does not seek to tie the Government’s hands in the negotiations. It does not seek to influence the content; it focuses on what happens if Parliament declines to approve the final deal. The choice that we do not want to be presented with, I am afraid, is the one that the Minister set out at the beginning, which is defining as success whatever the Government negotiate or falling back on the WTO. I do not want to go through the WTO rules in detail, but let me give just one example: a 10% tariff on car exports. Take the Nissan Qashqai, proudly made in the north-east of England. That tariff would mean a surcharge of over £2,000 on each car made in the north-east, compared with a competitor vehicle made in a plant in the European Union, or even another Nissan model made in the EU. On food and drink, the tariffs are 20%, and on some agricultural products they are even higher. That is before one even gets to the weakness of enforcement mechanisms within the WTO, where businesses cannot even take enforcement cases and only Governments can do so.

The Government themselves say that they do not want this option. They set out 12 points in their White Paper, the 12th of which says that they want

“a smooth, mutually beneficial exit”.

Paragraph 12.2 says:

“It is…in no one’s interests for there to be a cliff-edge for business or a threat to stability…Instead, we want to have reached an agreement about our future partnership by the time the two year Article 50 process has concluded.”

This new clause empowers Parliament to avoid the very outcome that the Government themselves say in the White Paper that they want to avoid. For that reason, it is not, as too many Members have asserted, some attempt to undermine the Government. We should be using the power of Parliament to influence these negotiations.

Let me deal with the “five minutes to midnight” point made by the right hon. and learned Member for Beaconsfield (Mr Grieve). It is hardly unknown for the European Union to schedule another round of talks—it happens very frequently. In these circumstances, we would be entirely within our rights to strengthen our Government’s hand by saying, “Go back and renegotiate on this point or that point.”

[Mr Grieve]

I do not disagree with the right hon. Gentleman, but I want to emphasise this point. All sorts of things are possible—the Commission and the Council may decide to extend the period of negotiation—but we have to look at the legal implications of what we pass into law by amendments. If the new clause is prescriptive in a way that could allow the problem to occur that has been identified—dropping off because one has lost time and cannot come back to this House—we cannot just ignore that. We have to find a way round it or accept the assurances that the Government give.

[Mr McFadden]

The new clause is very simple on this point. It asks that in those circumstances the Government will seek to negotiate an alternative agreement. That is perfectly reasonable.

European Union (Notification of Withdrawal) Bill

Dominic Grieve Excerpts

Tuesday 31st January 2017 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

As Attorney General, I had plenty of opportunities to witness some of the problems attendant on EU membership, including the difficulties of achieving harmony when there are 28 member states, of the ways in which rules could be applied, and, at times, of the irksome sclerosis that pervaded it as an organisation. I have to say, however, that at no time did I have any doubt that being a member of the European Union was in our national interest. In the months that have elapsed since the referendum, I have never taken the view that my opinion has any reason to change on this matter whatsoever. On the contrary, it seems to me that as the months go by it becomes clearer that the challenges we face in leaving the European Union are going to be very considerable.

We reassure ourselves that we wish to globalise and to look outwards. I never thought there was any problem in looking outwards from within the European Union in the first place. But as we go and spend time trying to get trade deals with third countries outside the European Union, it becomes manifestly obvious that each one of those will carry its own cost, and that that cost will often go beyond just economic issues and into values as well. That is what has always worried me most of all about the decision to leave. Although we are insistent, and rightly so, that we wish to continue close co-operation with our European partners, the reality is that we are embarking on producing a series of obstacles to understanding, and that means that we will be perceived as turning our back on countries who are not only our closest neighbours but in reality, as becomes manifestly more obvious with every passing year, share our values in a very developed fashion. That is not to say that that is exceptional—there are other countries that do so outside the EU—but these are key relationships for the wellbeing of our citizens and our national security. The only thing that has given me comfort during this period is that the speech by my right hon. Friend the Prime Minister a week or so ago seemed to me to set out very clearly an understanding of the challenges that we face and an intention to pursue a policy that, if it can be carried out—I have to say that I think it is going to be of considerable difficulty—would place the United Kingdom at the least disadvantage from its decision to leave.

So far as triggering article 50 is concerned, I take the view that I will support the Government in doing so, despite my deep concerns. That comes from two things. One, as has already been cited by others, is that I supported the referendum and, by implication, indicated that I would honour the decision that the electorate made. Even if I had not, one of the reasons why we are sent to this place is to pursue the national interest by looking at the widest considerations. I cannot see, at present, how continuing with political uncertainty would be in the national interest, if we tried to obstruct the decision that the electorate so clearly made.

That brings me to what we should try to do in this Bill. Many amendments have been tabled, many of which seem to me to involve micromanagement of the negotiating process, which is something that this Parliament cannot readily do. But I do worry about process. It may sound legalistic, but process, in my experience, matters enormously because it enables one to focus in a sensible way on the issues that arise. It worried me deeply that the Government—leave aside the legalities of the matter and the Supreme Court decision—seemed at the start of the process to want to deprive the House of a say in triggering article 50. In the same way, I worry very much that we should have a proper process to help to engage the House and the country in what we are going to do. We still do not have a White Paper, and I say to my right hon. Friends on the Front Bench that that White Paper has got to be there before we come to the Committee stage. Without it, we cannot have the informed debate that we will need to have at that stage.

Looking forward much further, there will come a time when the Government return to the House and ask for its approval of what they have succeeded in negotiating. Of course, they do not have to do so, because of the way in which conventions operate in foreign affairs. But I have to say to my right hon. Friends on the Front Bench that that has to happen before the matter goes to the European Parliament for ratification, if that is the deal that has been agreed. Those seem to me to be the two benchmarks that we will need if we are to maintain the support that the House needs to give to the Government if the negotiations are to lead to a satisfactory outcome.

I started my political career by campaigning for the “Keep Britain in Europe” campaign in 1974, so I cannot say that I am unemotional about this issue. I think we have made a grave error, and I think it is one that will become more and more apparent with the passage of time. In the meantime, the national interest is that we should all try to work together to achieve the best possible outcome for our country.

Article 50

Dominic Grieve Excerpts

Tuesday 24th January 2017 Commons Chamber

[Mr Davis]

I repeat again that the House will have that opportunity over and over and over again, on a whole series of primary legislation and secondary legislation and, finally, with the vote itself. I have not given a great deal of thought to how the timing of that will coincide with the European Parliament, but I will do so and write to the hon. Lady.

[Mr Dominic Grieve (Beaconsfield) (Con)]

My right hon. Friend will be aware that in the course of the court case the Government laid great stress on the irrevocability, in their opinion, of article 50. In those circumstances, I am sure he can understand that the problem facing the House is that in triggering article 50, that irrevocability has to be matched against the excellent words of my right hon. Friend the Prime Minister in setting out a plan that envisages a future relationship with the European Union from outside of it. Will he therefore keep in mind that the debate on article 50 is likely to be greatly facilitated if the ideas expressed by the Prime Minister are put into a White Paper, or similar document, to which reference can be made in the triggering of article 50, without fettering the Government’s discretion in their negotiations thereafter, because ultimately, as he may agree, this comes down to an issue of trust? If the Government can build that trust, they will greatly facilitate their task, and, if I may say so, those such as myself who wish to help them in what they are trying to achieve.

[Mr Davis]

My right hon. and learned Friend—my old friend—tempts me down a certain route, but I will answer him in these terms. In the case, the argument put by the Government did not depend on the irrevocability or otherwise of the legal issue in front of us; it depended on the fact that we view the irrevocable moment as being 23 June last year, and that it is not in the gift of the Government to change their mind, so we have already passed the point of no return. In terms of information, I have said over and over again that I will provide what information I can, and as much information as I can, without undermining our negotiating position, and I will continue to do so throughout the article 50 process and beyond.

The Government's Plan for Brexit

Dominic Grieve Excerpts

Wednesday 7th December 2016 Commons Chamber

[Mr Davis]

No, I am going to make a bit of progress. I will give way later. I normally like the badinage with the Opposition, but I have to make some progress on quite an important argument.

Dance on a pin as the shadow spokesman may, that is what the Opposition are signing up to: the Government invoking article 50 by 31 March 2017. Let us be clear about that. It has always been our intention, as I said in my intervention on him, to lay out the strategy in more detail when possible, provided it does not undermine the UK’s negotiating position.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Will my right hon. Friend give way?

[Mr Davis]

If my right hon. and learned Friend will wait a little while, I will, of course, give way to him.

In fact, I have said that categorically in front of this House and the other House on a number of occasions, including just last week, and I am happy to confirm it again today. Our amendment also lays out an important challenge to those on the Benches opposite who say that they respect the result of the referendum, but whose actions suggest that they are looking for every opportunity to thwart and delay this. We will see today if they are willing to back the Government in getting on with implementing the decision made by the people of the United Kingdom. However, before I address the motion in terms, I will give way to my right hon. and learned Friend.

[Mr Grieve]

May I emphasise to my right hon. Friend that the motion must require Parliament to support the triggering of article 50 by means known to the law? He will doubtless agree that, as the law stands, that requires primary legislation. While it is possible for private Members’ Bills to be introduced, in reality it will be the Government’s duty to introduce legislation if they wish to proceed, and to do that in a timely fashion that enables proper debate on it.

[Mr Davis]

My right hon. and learned Friend, the ex-Attorney General, should know better than to tempt me to comment on a court case that is taking place as we stand here, so I will not do that, but as he well knows, we will obey the rule of law; we will obey what the Court finds. We will ensure that we do the right thing. As the spokesman for the Opposition said, one of the reasons we are waiting on the outcome is to get precisely right what it is this House has to do.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

As the Member of Parliament for a constituency that voted narrowly to remain, I have felt ever since the summer that my task is to help my colleagues in the Government to achieve Brexit in a manner that is satisfactory and will lead to the best possible outcome for everyone in the country, and today that is still exactly what I want to do. The difficulty, as I see it, is that what we have heard over the last two months in particular—the vitriolic abuse, the polemical argument without any substance, and the ignorance of some of the basic ABC of our constitution—has reached a point at which I sit in the Chamber and listen to utterances that border on the completely paranoid. The nadir, for me, was to sit one evening and hear a Minister of the Crown—not one of those who are on the Front Bench today—say that one of the Queen’s subjects who was seeking to assert her legal rights in the Queen’s courts, and who was, I might add, subjected to death threats as a result, was doing something, or had achieved something, that was unacceptable. If we continue like this, we are on the road to a very bad place.

In my opinion, while my duty as a Member of Parliament is to seek to uphold Brexit and help the Government to achieve it, that does not mean that I must suspend all judgment. On the contrary, we have a clear responsibility to scrutinise legislation, to ask awkward questions, to express our views and, if necessary, to intervene in the process if we think it is going off the rails to such an extent that it is no longer in the national interest. That is why I felt frustrated by the Government’s apparent refusal to come up with a coherent plan.

When article 50 is triggered, we shall be embarking on a process which, in reality, the Government themselves will have great difficulty in controlling. I certainly do not take the view that it is the duty of the House to micromanage the Government, and it has certainly never occurred to me that we should lay down prescriptive rules for what the Government should be trying to achieve, along the lines feared, I think, by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I do not think that that is realistic. However, I do think we are entitled to know what the Government are intending to achieve, in broad terms, so that we can debate it and influence it. Some Members may then have to accept that they are in a small minority in respect of some of the legitimate issues that we can debate within the parameters of Brexit itself, and then help to sustain the Government as they go ahead with their work. The fact that the Government have that mandate and have the approval of the House, will, in my view, help them immeasurably in their negotiations.

[Sir Oliver Letwin]

My right hon. and learned Friend is making a powerful speech. Does he agree that if this House and the other place sought to amend the triggering legislation, that would have the effect of making the mandate justiciable?

[Mr Grieve]

It depends on whether we were seeking to limit the mandate in carrying out amendments. As I have not seen what the Government are proposing by way of primary legislation, I have no idea to what extent it might or might not be amendable, but it certainly would not have crossed my mind that one of the sorts of amendments I should produce would involve creating justiciable targets. I think my right hon. Friend knows me well enough from my time as a Law Officer to know that my views about declaratory legislation and targets are probably fairly unprintable—and certainly unutterable in this Chamber—and I do not recommend it to anybody.

On the question of where we are going after that and considering the issues around Brexit, I simply point out that some of the things said, even today by Government Members who I respect, seem to me to be rather fanciful. We have heard a lot about the sovereignty issue requiring us to withdraw from the European Court of Justice. I have to gently point out that if we are going to stay within the mechanisms of justice and security, which the Secretary of State said he believed was in the national interest, although our withdrawal from the EU will mean we will no longer be subject to the direct effect of the ECJ, decisions of the ECJ on interpreting the treaty will continue potentially to have force on us in this country. That is not surprising because we are signed up to over 800 international treaties which have arbitral mechanisms for resolving disputes.

So unless we start getting out of this fantasy element about Europe as a pariah entity, we are not going to start getting down to a realistic assessment of what it is in our national interest to remain adherent to and what it is in our national interest to withdraw from, even though we will be outside the EU and therefore not subject, for example, to direct effect at all.

[Mr Rees-Mogg]

My right hon. and learned Friend’s last point is exactly the point: if we have left the EU, judgments of the ECJ will have the same effect as judgments of the WTO arbitration court. They will not be automatically law of this land and will be subject to Parliament, which is a fundamental change.

[Mr Grieve]

It is indeed a fundamental change, and I am delighted my hon. Friend is pleased and that appeals to him, but I have to say this from listening to some of the things said this afternoon: the logic of what my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) in particular was saying was that we would have to withdraw from all the 800 treaties that were subject to any arbitral mechanism because they undermined our sovereignty. This is the kind of issue in debate we have got to start to sort out, because the public out there expect us at least to have some degree of expertise about what we are actually trying to do, and to go and explain it against the background, as I said earlier, of vitriolic abuse against anybody who is prepared to raise their voice to put forward any argument that appears to be counter to the fantastical vision some have created out of our leaving the EU.

Another example is the situation with regard to the WTO. I may be wrong but I think joining, or rejoining, the WTO requires a negotiation with 163 countries, including an agreement with the EU.

[Mr Steve Baker (Wycombe) (Con)]

Will my right hon. and learned Friend give way?

[Mr Grieve]

I will not give way as I must finish.

So that WTO negotiation will also be a matter of great complexity.

The one thing I am satisfied we are not doing tonight is validating the triggering of article 50 without more debate. First, it is quite likely that we will have to do it by way of primary legislation, but even if we do not, the Government would be wise to come back to this House and get the endorsement, as they would be entitled to do, once they have engaged in the type of debate that will enhance this House’s reputation and help us to do our jobs properly.

--- Later in debate ---

[Crispin Blunt]

The hon. Gentleman is absolutely right. However, the principal nations of the EU, which are facing populist insurgencies in their politics, are anxious about the message that is sent. If the UK gets a really good deal, that will encourage other movements to seek the same arrangements for themselves. They have an explicit choice to make between their interests, which with the current balance of trade are to continue trading with the UK as we are, and the political message that might be sent.

[Mr Grieve]

I agree with my hon. Friend’s analysis, but is it not also the case that the whole negotiating thing is about human relations, and the difficulty that we face at the moment is that the message we put out to our European partners is deeply offensive, which is going to make securing our deal with them much harder?

[Crispin Blunt]

My right hon. and learned Friend is, of course, absolutely right. We have to try to take the temperature down, which is why people should not exploit it when I may have said something inadvertently and I was actually saying something totally different. We are talking about our allies—most of them allies within NATO—and, in the words of the Foreign Secretary, we need to be a “flying buttress” to the future of the European Union from the outside. One reason I supported Brexit is my belief that the UK will have a much happier relationship with the nations of the EU by being outside and having engaged their support, rather than by having to fight battles as our interests diverge from those of the states that had the currency. We could see that that was going to happen over the decades. Our country has taken this decision in its medium and long-term interests, and it should be seen in that guise. It is on the other side of the table that the principal negotiating challenge sits, as the 27 nations have to reconcile all this. My right hon. and learned Friend may say that the interpretation of positions from here is difficult, but Mr Barnier and Chancellor Merkel made a mistake in rejecting the reciprocal arrangement to try to address the situation of EU citizens here and UK citizens there, and in saying that nothing must be agreed until everything is agreed. That has played into the British position, which is helpful, as we have very much to offer the EU and it needs—

Parliamentary Scrutiny of Leaving the EU

Dominic Grieve Excerpts

Wednesday 12th October 2016 Commons Chamber

[Keir Starmer]

Absolutely, but I take this in two stages because both are important. Scrutiny—putting the plans before the House—really matters. There is a separate argument about a vote, and I say that there should be a vote, but we must not get to a situation where, to resist the vote, the Secretary of State will not even put the plans before the House.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Is not the convention very clearly established that a major treaty change has to be triggered by an affirmative resolution of the House? The fact that that may only be a convention is still something that must be respected. After all, there are lots of conventions, such as the convention that a Government resign if they lose a vote of no confidence. That is no more than a convention, but Members might be a bit surprised if a Government were not to go in those circumstances.

[Keir Starmer]

The prerogative has come up so often that I will deal with it now in substance. Prerogative powers, of course, developed at a time when the monarch was both a feudal lord and Head of State. That is the origin of prerogative powers, but they have changed over time, yielding where necessary to the demands of democratic accountability. There are plenty of examples, as the Secretary of State will know, in the courts of that change in accountability, but there is also the example of the prerogative power to commit troops in armed conflict. In theory, the Prime Minister and the Cabinet retain the constitutional right to decide when and where to authorise action, but in practice Governments in recent times have ensured parliamentary debate and a vote.

Responding to the Chilcot report earlier this year, the then Prime Minister made the point during Prime Minister’s questions when he said:

“I think we have now got a set of arrangements and conventions that put the country in a stronger position. I think it is now a clear convention that we have a vote in this House, which of course we did on Iraq, before premeditated military action”.—[Official Report, 6 July 2016; Vol. 612, c. 881.]

A strong political convention modifying the prerogative has thus been set.

--- Later in debate ---

[Edward Miliband]

That might well be the case. We only need to read the newspapers to see that if debates are not taking place clearly about the Government’s position in this House, they are certainly taking place clearly in the Cabinet, and the Chancellor of the Exchequer seems to be in a slightly different position from some of his colleagues.

I want to conclude—because there are other people who want to speak in this debate—by returning to where I started. This issue goes so far beyond party politics and so far beyond whether we were for remain or leave in the referendum. It also goes so far beyond our tenure in this House, because the decisions we make in the next two or three years will have implications for decades to come, so I implore Members in all parts of the House, particularly those on the Government Benches. I know there will be pressure not to speak out—some of them have honourably done so—but I hope we will hold to the best traditions of this House as we think about our duties, because our duties are not about procedure.

[Mr Grieve]

I can give the right hon. Gentleman an absolute, categorical assurance that, as far as I am concerned, my duty to my constituents transcends duty to party in this matter. I agree with him totally that as the effect of this change is so major, we each have to look at how we achieve the best result for our country.

[Sammy Wilson]

rose—

--- Later in debate ---

[Nicky Morgan]

rose—

[Mr Grieve]

rose—

[Sir William Cash]

I am not giving way for the moment. I am saying that we cannot both be in the single market and repeal the 1972 Act, whose laws are part of the jurisdiction of the European Court of Justice. I will give way now to the former Attorney-General.

[Mr Grieve]

My hon. Friend will doubtless agree with me that over the next three to four years we will get out of one treaty and replace it with at least another, if not a multiplicity of treaties—part of the 13,000 by which we are bound internationally at present. He might also agree that Norway provides an example of a country that participates in the single market without being a member of the European Union. Does that not completely destroy the argument that my hon. Friend has just put forward?

[Sir William Cash]

It does not, because I said implicitly that we would not be able to go into the European economic area for that very reason. The British people have spoken in the referendum, and everyone in the Chamber says that they respect the views of the British people, yet at the same time we hear these weasel words that somehow imply that it is possible to leave the European Union, repeal the European Communities Act 1972 and still remain within the jurisdiction of the European Court of Justice. That is just nonsense—political and legal nonsense.

[Nicky Morgan]

rose—

[Mr Grieve]

rose—

[Sir William Cash]

I have given way enough for now, and I want to continue with what I have to say. I shall come back to this issue on another occasion, but my position is abundantly clear and correct: we cannot both be in the single market and repeal the 1972 Act.

What is the meaning of the answer to the question? It meant that, by the consent of the voters given by the sovereignty of this House, this Parliament agreed to give to the British people the right to transfer from Members of Parliament in their place today and beforehand to them the decision on whether we remained or left. That decision was taken by a majority of something of the order of 6:1. In my judgment, it is unseemly if not absurd for the same Members of Parliament to say, “Oh, well, we did not like the outcome of the result” and then to say “We are now going to mitigate or try to overturn it”.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

Mr Speaker, I apologise for the fact that my duties as Chair of the Intelligence and Security Committee meant that I had to be absent for part of this debate.

I greatly welcome the debate, and I entirely welcome the motion that was tabled to precipitate it. I agree with its content. I also agree with the Government’s amendment, which seems to me to be perfectly complementary to the motion. I am particularly pleased that it appears to be a sign that the Government are moving on the issue of parliamentary involvement, a point to which I will return in a moment.

I entirely accept the verdict of the electorate given on 23 June. It was a significant majority, albeit a small one—1,200,000 is not negligible. It is our duty as parliamentarians to try to put that into effect. In doing so, we as parliamentarians, and indeed those in government, have to have regard, as we always do, to the security of our country, the economic wellbeing of its citizens and their quality of life. The test for us is going to be how to reconcile the one with the other.

I was concerned to hear my hon. Friend the Member for Stone (Sir William Cash) suggest, as I have heard previously, that the referendum result provides a restricted number of choices as to what we can now do. It is perfectly plain that it does no such thing. We have to leave the EU, but the range of the choices thereafter, in terms of our relationship with the EU, runs from one akin to that of Norway to one akin to that of North Korea, were we minded to pursue it.

I do not have a prescriptive view as to what that relationship should be. I am quite happy to debate those issues and listen to colleagues, but what I am not prepared to do—I say this with emphasis—is have options closed down by diktat, from wherever it may come. I am sorry to have to say this, but that includes from colleagues and the Executive. They will have to be debated in this House, and this House will have to give its approval. I am bound to point out that it was Parliament that decided on the referendum, not the Executive. It is our task to honour its terms, even if it is the Executive’s task to implement the negotiating process.

I also worry very much about the excessive euphoria that has followed this process. I hope that I am not too gloomy, but I see it as fraud with risk. There is the risk of the economic damage, as was commented upon by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke)—I will not pursue that now. I have to say that, as a lawyer, I see the repeal process and our leaving as a legal nightmare, and one that will take up an endless amount of the House’s time, to the prejudice of many other priorities on which we should be focused. It undoubtedly impinges on the devolution settlements and competence. We have a duty to maintain legal certainty and the rule of law, which will be jeopardised in the process. There are private legal rights that are likely to be affected, some of which might lead to litigation and claims for compensation. Our international legal obligations are engaged, particularly with the Irish Republic, and that is a matter of vital national interest.

Surrounding all that is the fact of the risk of this process being exploited by other countries with interests inimical to those of the United Kingdom, ranging from Russia, which is a predatory state and an international disturber, to the Spanish attitude to Gibraltar, which is also capable of operating greatly to our prejudice and theirs. These are all matters that we will have to discuss.

Exiting the European Union

Dominic Grieve Excerpts

Monday 5th September 2016 Commons Chamber

[Mr Davis]

We did—it was called the referendum Act, which was passed by a ratio of 6:1 in this Parliament.

[Mr Dominic Grieve (Beaconsfield) (Con)]

First, may I congratulate my right hon. Friend on his complete and abysmal failure over a 10-year period to avoid high office? It is a great pleasure to see him in his place. May I also reassure him that as somebody who supported the remain campaign, I see it as my absolute duty to support the Government in giving effect to the public desire to leave the European Union, including supporting the Government in their implementation of article 50? He rightly pointed out that the matter is legally extremely complex. It also concerns, as he rightly said, the acquis communautaire, which is about the conferring of private legal rights on individuals in this country which have the force of statute. I have to say to my right hon. Friend that the idea that those should simply be revoked by our exit without parliamentary approval troubles me very much and appears to me to be an abdication of the responsibility of this House. I accept that in many cases they have been created by Henry VIII clauses, which was the unsatisfactory nature of the EU, but what we will now do if we cannot scrutinise them before article 50 is invoked is allow the Government to dispose of private property rights, including intellectual property as an example, by decree. That troubles me very much, and I ask him to use his ingenuity to find ways of resolving this particular dilemma.

[Mr Davis]

It is a pleasure to hear from my right hon. and learned Friend and long-term friend, but he is over-interpreting what I have said, I think. Article 50 is the beginning of this process; it is not the end. I know there will be many opportunities for this House to scrutinise what we are about to do after article 50 takes place, but it would be somewhat futile to do so before we start the negotiations, as some of those negotiations will have a direct impact on the very rights that he is talking about. He can take it from me that I did not spend all those years on the Back Benches defending those rights to give them up now.